Border Security Carried Too Far

August 1, 2003

I had a call from a company whose driver received a citation in New York state for a log violation. I was further informed that when the driver contacted the court asking "specifics", that the violati...

August 1, 2003
by
Blair Gough

Categories

I had a call from a company whose driver received a citation in New York state for a log violation. I was further informed that when the driver contacted the court asking “specifics”, that the violation is considered a criminal offence. The caller was asking if this could be true.

Incredibly, yes.

I did a bit of “digging” on this one. The driver had not filled in that part of the log information that requires commodity or bills of lading numbers under the U.S. DOT Hours of Service regulations.

Indeed it turns out that a conviction for such an offence under New York law is in fact a criminal misdemeanor. Now unlike Canada where all criminal offences are “federal” in nature, covered under the Canadian Criminal Code, in the U.S. most criminal law is administered by the state. But that said, such a conviction would still mean the driver would in fact have a criminal record – not a nice tag for anyone to have, regardless of how seemingly trivial.

Personally, I have always had a general respect for the laws of other jurisdictions, taking the approach that “when in Rome, do as the Romans do”. But in this instance, I respectfully suggest, that to turn a driver into a convicted criminal over something so petty, is pathetic to say the least. Is it any wonder there is a severe driver shortage in both Canada and the U.S?

In this particular instance, there was a happy ending. The driver’s company retained a lawyer, who after some long haggling with the state trooper who laid the charge, got him to agree, along with the prosecutor, to amend the charge to one which would not result in a criminal conviction.

Now the U.S. is not the only place where drivers often come face-to-face with the realities of the law. Drivers coming into Canada are often asked quite legitimately if they have a criminal record. In a recent instance, a long-term driver for one client entered Canada for his first time and was posed this question. His answer was honest. Yes he had been convicted six years back for “theft of telecommunications”. Seems he had a satellite dish and was capable of receiving unauthorized signals. It was considered a minor offence in his home state, and the penalty given was that it was to be dismantled, and not to be used again. All of this information was given to the officer at primary inspection upon entering Canada.

He never did make it into Canada, and never wants to come back. The officer, in accordance with the Immigration Act, denied entry on the basis that this offence, if committed in Canada, could be considered an indictable offence.

This is why so many U.S. drivers are turned away, given “discretionary entry” for a fee, or required to apply for Ministerial Permits. Most criminal offences in Canada are what are considered “dual procedure”, summary versus indictable offences. They can be tried either way, and invariably most proceed the summary route.

Canadian drivers, perhaps better than most of us, know that entry to the U.S. has been tightened sine 9/11. The U.S. immigration laws are detailed and complex, but for the most part drivers with a criminal record may be interested in the basic considerations for exclusion from the U.S. And “exclusion” is a lifetime ban, unless a waiver from the exclusion is granted from the U.S. Immigration department.

Here’s a closer look at the criteria used:

Has been convicted of or admitted to committing a crime of moral turpitude: What the heck is moral turpitude? Murder will qualify, along with sexual assault, robbery and other serious offences. Impaired driving convictions will not usually be considered an excludable offence. The term alone, I suspect, means many different things to different people.

But to muddy the waters, there is what is known as a single crime of moral turpitude exception. This exception applies when the offence is punishable by a year or less and the sentence imposed, does not exceed six months. Further, the exception applies to offences committed when a person is under the age of 18 as long as five years have elapsed from the date the sentence was completed. However, the single offence exception does not appear to apply to convictions for two or more offences, even when they relate to the same incident. And note that the single crime exception does not apply to any drug convictions.

Has been convicted of or admitted to a violation of any country’s laws relating to controlled substances, including simple possession of any amount:This is a big one. It’s fair to say the U.S. has zero tolerance to illicit drug use, and even to the admission of use in the absence of any conviction.

If the person has been convicted of two or more offences, regardless of whether they arose out of the same set of circumstances and regardless of whether any moral turpitude was involved, when the aggregate sentences involved confinement for five years or more: This exclusionary rule is fairly clear, but a key consideration being that “moral turpitude” is not a relevant factor where there have been two or more convictions with total time sentenced being five or more years.